Massachusetts v. Oakes

PETITIONER: Massachusetts
RESPONDENT: Oakes
LOCATION: Circuit Court of Orange County, Florida

DOCKET NO.: 87-1651
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Massachusetts Supreme Judicial Court

CITATION: 491 US 576 (1989)
ARGUED: Jan 17, 1989
DECIDED: Jun 21, 1989

ADVOCATES:
James M. Shannon - on behalf of the Petitioner
Richard J. Vita - on behalf of the Respondent

Facts of the case

Question

Media for Massachusetts v. Oakes

Audio Transcription for Oral Argument - January 17, 1989 in Massachusetts v. Oakes

William H. Rehnquist:

We'll hear argument now in No. 87-1651, Massachusetts v. Douglas Oakes.

General Shannon, you may proceed whenever you're ready.

James M. Shannon:

Thank You, Mr. Chief Justice, and may it please the Court.

This case comes to the Court on writ of certiorari to the Supreme Judicial Court of Massachusetts.

And it raises the question as to whether the overbreadth of a Massachusetts statute whose purpose is to prevent the sexual exploitation and abuse of children is so real and so substantial as to warrant striking down the whole statute on its face.

The relevant statute, Chapter 272, Section 29A, punishes whoever hires, entices, employs, procures, uses, causes, encourages or knowingly permits a child under the age of 18 to pose or be exhibited in a state of nudity or to participate in sexual conduct for the purpose of any visual representation.

Byron R. White:

Just so I get it straight, you talk about overbreadth.

What's your position on whether the conduct or the... these... this... what this father did... is it protected or unprotected?

James M. Shannon:

It... it is our position, Your Honor, that although the court below specifically did not react the question as to whether the Respondent's activity was protected or not... it is position that it was clearly not protected.

Byron R. White:

And it certainly wasn't under the statute.

I gather.

James M. Shannon:

It--

Byron R. White:

I mean, the statute would certainly forbid it.

James M. Shannon:

--That's right, Your Honor.

It would... would forbid it.

Byron R. White:

And you say that it's... it could constitutionally do that.

James M. Shannon:

Yes, Your Honor.

Sandra Day O'Connor:

xxx--

--General Shannon, the statute has been amended in Massachusetts since we took the case, has it not?

James M. Shannon:

It has, Your Honor.

Sandra Day O'Connor:

To add a lasciviousness requirement?

James M. Shannon:

There is a requirement now of lascivious intent which didn't exist prior to the Supreme Judicial Court's decision.

Sandra Day O'Connor:

And I gather, would you think that the defendant in this case would have been subject to prosecution and he could be found guilty under the new statute as amended?

James M. Shannon:

I think that the defendant in this case, Your Honor, could have been prosecuted under the nude statute... the new statute because the definition of lascivious intent in that statute includes inappropriate attire and... and suggestive poses.

And I think he could have been--

Right.

James M. Shannon:

--prosecuted.

Sandra Day O'Connor:

Is there any other state that has a statute as broad as the one at issue in this case?

James M. Shannon:

I believe, Your Honor, there are two states that have statutes which would prohibit depicting children in the state of nudity.

Kansas is one, and Ohio is the other.